U.S. v. Montoya de
Hernandez
Transcript of oral
argument
CHIEF JUSTICE BURGER: We will hear arguments this
morning in United States against de Hernandez.
Mr. Frey, you may proceed whenever you’re ready.
ORAL ARGUMENT OF ANDREW
LEWIS FREY, REQ.,
ON BEHALF OF THE
PETITIONER
MR. FREY: Thank you, Mr. Chief Justice, and may it
please the Court:
The issue in this case is whether Customs inspector
who possess a reasonable suspicion that a traveler at the border is carrying
contraband in her alimentary canal must nevertheless allow that person and
whatever she may be carrying to enter the United States f she is unwilling to
consent to be X-rayed and if the acts known to the officers do not provide what
the Ninth Circuit calls a clear indication or plain suggestion; that is, more
than reasonable suspicion of smuggling.
Now, when respondent presented herself to Customs as
part of the process for entering the United States, examination of her
documents and questioning revealed a number of facts that caused the officers
to suspect her of alimentary canal smuggling. These included the following.
Respondent was coming from Colombia, a notorious
source country for illicit drugs. She had recently made a number of short trips
to Miami and Los Angeles. She spoke no English, had no family or friends in the
United States, had no hotel reservations. Her ticket had been purchased with
cash. She should not recall the circumstances of it. purchase. She was carrying
$5,000 in cash on her person and a relatively small amount of luggage. Finally,
when questioned about the purpose of her trip, she said she was coming to buy
merchandise for her husband’s store in Colombia, which she proposed to do
simply by taking a taxicab around to such retail stores as K-Mark and J.C.
Penney’s and buying goods off the shelf as it were.
Now, understandably auspicious, the examining
inspector arranged for a pat down and strip search of respondent which, while
disclosing an unusual arrangement of undergarments, provided no direct evidence
of alimentary canal smuggling.
Respondent was then asked if she would consent to an
abdominal K-ray to verify or dispel the suspicions, and while she initially
consented, she thereafter withdrew bet consent.
At this point the inspectors requested Customs Agent
Windes permission to seek a court order for the x-ray. He declined to do so,
and he instead instructed the inspectors to offer respondent three options of
returning to Colombia on the available flight, consenting to an x-ray, or being
detained until her body wastes could be examined. She opted to return to
Colombia, but as the next flight was many hours away, she was detained in a
room at the airport under constant observation of the Customs officers while
awaiting her flight.
QUESTION: Mr. Frey your brief I think suggests that
there may have been a flight to Mexico that was cancelled or something?
MR. FREY: There was an effort made to put her on a
LAXA flight which would have involved a connection in Mexico City, but because
she didn't have a visa --
QUESTION: That evening?
MR. FREY: Sometime during the period of detention.
I’m not -- don't ‘~ know that the record indicates when it was.
I should make it clear that these instructions from
the agent that she should be allowed to return were not consistent with Customs
policy, and that it is the policy of Customs not to allow such people, if
they’re reasonably suspected of drug smuggling, to return before that suspicion
can be checked out.
QUESTION: By the time of these inquiries and
discussions she was in the jurisdiction of the United States, was she not?
MR. FREY : Well, she bad not technically entered the
United States. She was at the border, during the entire time of this incident
prior to the --
QUESTION: On whose physical territory were her feet
resting?
MR. FREY: It was part of the United States, but for
Immigration or Customs purposes she had not, in our view, yet entered.
QUESTION: Not completed an entry.
MR. FREY: But she was in the United States. She --
QUESTION: She was within the borders of the United
States.
MR. FREY: That’s correct. And if she had drugs in
her person -- on her, in her body, she was guilty of a criminal offense as well
as a civil violation of the Customs laws.
In any event, over the next 13 hours or so
respondent refused to at or drink, would not go to the bathroom, and exhibited
what the court of appeals majority subsequently described as, and I quote,
‘symptoms of discomfort suspected to arise out of or at least consistent with
heroic efforts to resist the usual calls of nature."
At this point, based on what was known before
together with respondent’s behavior during the period of detention it was
decided to seek a court order authorizing medical personnel to conduct an X-ray
or body cavity examination to determine whether respondent was carrying drugs,
and a court order was eventually issued.
And I’m going to call the Court’s attention to a
caveat that was contained in the order. Respondent had asserted that she was
pregnant. The order said that the x-ray and body cavity search is to be
conducted only after a medical doctor has approved the use of the X-ray and
body cavity search as appropriate.
QUESTION: What page is that?
MR. FREY: This is page 45 of the Joint Appendix. ax
appropriate for the defendant and only after a doctor has considered the
defendant’s claim that she was pregnant.
After the order issued, respondent was taken to a
hospital and there a rectal examination disclosed a balloon containing cocaine.
She was then arrested, and over the next few days she excreted 88 balloons
containing more than one-half a kilogram of cocaine.
Respondent moved in district court to suppress the
cocaine on the ground that at the time the initial examination and strip search
were completed, Customs did not possess a clear indication or plain suggestion
of alimentary canal smuggling --
QUESTION: Mr. Frey, is this clear indication or
plain indication, is that somewhere between reasonable suspicion and probable
cause?
MR. FREY: That is bow the court of appeals has
described it, as less than probable cause.
QUESTION: So it’s a third standard really.
MR. FREY: It’s an intermediate level of suspicion in
between. Although in reading the Ninth Circuit’s cases they seem to suggest
that certain kinds of evidence are necessary for a clear indication or plain
suggestion, that is, not just a wildly implausible story and the. various other
what you might call profile indicia, but something such as an unusual gait or
possession of lubricants or laxatives or other --
QUESTION: The words cane from Schmerber, didn’t
they?
MR. FREY: The words came from Schmerber, but as we
explain, and as I think you made clear in your opinion f or the Court in Winston
against Lee, they were not referring there to some intermediate level of
suspicion between reasonable suspicion and probable cause. They were used in
the context of rejecting the argument that the blood search in Schmerber could
be incident to arrest, and indicating that there had to be a clear indication
that the blood itself would produce -
QUESTION: And the Ninth Circuit didn’t have Winston
and Lee when they decided this case.
MR. FREY: It did not, and --
QUESTION: Mr. Frey, does any other court to your
knowledge follow the clear indication standard?
MR. FREY: No other to my knowledge. Indeed, the
Fifth and Eleventh Circuits have both indicated that for x-ray searches,
reasonable suspicion is the standard.
QUESTION: Do you think the same standard should
govern in the border detention issues for citizens as should govern the
standard for aliens?
MR. FREY: Well, we think that what was done here
could permissibly be done either to a citizen or an alien, but we are quite
clear that the Fourth Amendment vests no right in aliens to gain admission into
the country if the statutes and regulations on that subject bar their admission
under particular circumstances.
QUESTION; But you’re not arguing the case on the
basis of the Haitian refugee type approach that would just let the Attorney
General detain an alien under that kind of an argument. You’re asking us, I
take it, to decide the case on the basis of a standard that would be equally
applicable to citizens; is that right?
MR. FREY: That is our initial submission. However,
if on the basis of that standard you 're unable to agree with our submission,
then we are asking you to hold -- it’s different from the Haitian case, because
we’re not talking here about indefinite detention. We’re talking here about a
limited detention in connection with potential exclusion of the person as an
excludable alien, and in this case they would be sent back if there were no
evidence or if the matter were not expeditiously resolved. This is not a matter
of holding people f or months or --
QUESTION: Do you think that the government is
required to offer the alternative of an X-ray to someone as a means of avoiding
such lengthy detention in these cases?
MR. FREY: Well, if you were dealing with a citizen,
you would have to look at the reasonableness of the way in which the government
proceeded, and I think a court could conclude that the detention was not
reasonable if the x-ray was not offered. But it is our standard practice to
offer an x-ray and to give the individual a choice. In fact, I think there’s
some preference for an X—ray because it’s more --
QUESTION: Do you think that makes it more
reasonable, that the choice is offered?
MR. FREY: I think it makes it -- I think it would be
reasonable anyway. I think it makes it a lot more reasonable, yes.
Now, I was saying that in the district court
respondent’s argument was that reasonable suspicion is not enough. You need
this clear indication or plain suggestion. And that since that developed only during
the period of detention subsequent to the time of the strip search, that
additional information could not be considered, and the ultimate search was a
fruit of the illegal detention.
The district court denied the suppression motion,
finding that the officers had what it called a very substantial suspicion that
respondent was snuggling narcotics and that the detention was justified.
The court of appeals reversed. Now, it acknowledged
that the officers had a strong suspicion, and I’m quoting, of body smuggling.
They said that respondent ‘possessed almost all of the indicators’ used to
identify drug couriers. But it held that nevertheless, she had to be allowed to
enter the country in the absence of evidence satisfying the higher standard.
So as far as the court of appeals was concerned,
they didn’t have enough evidence, even though she was an alien, which was not
an issue that the court of appeals addressed, they had to just let her into the
country under the Fourth Amendment.
Now, let me begin the legal discussion by sentencing
a couple of matters that are not in issue here. First of all, I don’t
understand respondent to dispute that at the time the court order was obtained,
a valid basis existed for an x-ray or body cavity search, tar do I understand
her to dispute that reasonable suspicion would suffice to support an
examination of her body wastes. Her argument rather is solely that information
crucial to support the ultimate search was a product of an illegal detention.
We, on the other hand, do not suggest that an x-ray
or a detention of this duration would be permissible away from the border on
less than probable cause. This case involves the border. It does not involve
general principles that apply within the United states.
So the issue is whether it is reasonable for
:Customs to say to a reasonably suspected alimentary canal smuggler we will not
let you into the country until our suspicion is confirmed or dispelled. You
have the choice of an X-ray or being detained until we are able to examine your
body wastes. According to respondent and the court of appeals, the Fourth
Amendment prohibits such action even though reasonable suspicion exists.
Now, the limited
application of the Fourth Amendment at the border is too well settled to
require such elaboration. The Court summed it up in the Ramsey case where it
said that searches made at the border pursuant to the longstanding right of a
sovereign to protect itself by stopping and examining persons and property
crossing into the country are reasonable simply by virtue of the fact that they
occur at the border, should by now require no extended demonstration.
The Court had a footnote
in Ramsey that suggested that maybe the manner of carrying out a particular
search would have to be reasonable under the Fourth Amendment. So it’s clear at
least that no warrant is required, no probable cause is required for searches
at the border. It’s also clear that the statutory structure, going back to the
earliest days of the Republic, authorizes detentions as well as seizures end
searches at the border.
Now, the courts of
appeals, however, in recent years have developed a doctrine in the particular
area of searches of the body of a traveler arriving at the border. They have
held that certain types of searches are sufficiently intrusive into personal
dignity or privacy that they should not be based solely on a random basis or
purely subjective suspicion, because they require a reasonable suspicion of
smuggling in order to be justified.
Now, we don’t quarrel here
with the general proposition that reasonable suspicion is required, because of
course we contend and both courts below held that there clearly was reasonable
suspicion in this case. Our problem is with the Ninth Circuit’s additional
requirement in the case of X-ray searches, and as here a detention in lieu of
an X-ray search, for something more than reasonable suspicion.
Now, it’s important to
understand the devastating effect of the Ninth Circuit’s rule on the ability of
the Customs Service to prevent alimentary canal smuggling. This kind of
smuggling gives no external signs, unlike what’s called body cavity smuggling
where there will often be an awkward gait or where a strip search will actually
reveal some physical indication of smuggling in the body cavities. An
alimentary canal smuggler looks to all outward appearances perfectly normal.
So the basis on which
Customs can develop a suspicion has to be the kind of thing that was present
here, and the fact of the matter is that because alimentary canal smuggling is
so -- it’s potentially fatal if these balloons rupture, it is a very dangerous
undertaking, and ordinarily the people who are recruited to do it are poor
farmers for whom the money is an irresistible appeal, and that does make it
somewhat easier to detect them than if you had an American businessman, let’s
say, engaging in that kind of smuggling.
Now, because there are no
external signs and because you Only have the kind of suspicion that you can
develop from questioning and looking at the circumstances of the travel, it is
not clear whether we could ever satisfy the Ninth Circuit’s requirement of
clear indication or plain suggestion in the vast majority of alimentary canal
smuggling cases. So that when we have a suspicion based on factors like this, Customs
has the choices of having an X-ray, which will ordinarily reveal the truth of
the matter, or examining body wastes.
Now, normally people are
not, forced to have X-ray. In the Ninth Circuit subsequent to the cases that required
clear indication of X-rays -- and at this time it was the practice of Customs
to apply for a cr irt order before doing an X-ray, as the Ninth Circuit had
encouraged, and only to do so where they had these additional factors. So if
you don’t take an X-ray, your alternative is to hold the person, and you can’t
examine the body wastes until they’re released; and that is largely in the
control of the individual, and therefore, the detention can be, as it was in
this case, fairly extended.
Now, you will doubtless
hear from my friend about the long hours of humiliating discomfort that
respondent suffered as a result of the detention in this case, and certainly it
was regrettable that that happened. But our point is that this was largely her
doing and largely a matter, within her control. She could have agreed to an
X-ray, or she could at least have refrained from her heroic efforts that the
Ninth Circuit described.
In addition, generic in
this detention situation is that the longer the detention goes on, the more the
suspicion builds where the person refuses food and drink, refuses to go to the
bathroom and so on. So during this entire-period, obviously the Customs agents
were becoming increasingly suspicious of respondent and having an increasing
basis for believing that she was an alimentary canal smuggler.
So given the limited
Liberty and privacy interests that a traveler at the border has, we submit that
it’s entirely reasonable under the Fourth Amendment to require a reasonably
suspected alimentary canal smuggler to make the choice to which respondent was
put.
What is entirely unreasonable, in our view, is the Ninth Circuit’s
holding that we had to release such a person into the country before we were
able to determine whether we were also allowing illegal drugs into the country
at the same time.
Now, if I can come back
for just a minute to the point that Justice O’Connor asked me about earlier.
Whatever you may think about my argument so far in the context of a citizen or
even a resident alien seeking to return to his home in the United States, the
Ninth Circuit’s restriction on the detention of a nonresident alien at the
border is completely untenable, because such people have greatly reduced rights
of both privacy and liberty at the border in terms of entry into the country.
Now, there are a number of
statutes that you can Look at in defining, because after all, whet we are
talking about here is balancing the governmental regulatory interest against
the expectations of privacy and liberty that society accords people in the
border context. And in the border context, for aliens coming on a visitor’s
visa, the expectations are greatly reduced. In fact, Section 1225(b) of Title 8
says that every alien who may not appear to the examining officer to be clearly
and beyond a doubt entitled to enter shall be detained for further inquiry.
Moreover, such an alien
must be excluded from the country if Immigration officials know or have reason
to believe that the alien is an illicit trafficker of narcotics.
Finally, they pointed out
that there are statutes providing for the medical examination of aliens at the
border. Now, I don’t think that statute was enacted with this particular
exclusion, the 823 exclusion for narcotics trafficking, in mind.
The point that we are
making principally about this complex of statutes is that the Ninth Circuit
can’t be right in saying that the Fourth Amendment confers upon an alien at the
border the right to be admitted into the United States.
QUESTION: Mr. Frey, can I
ask you one question? To what extent is there an established procedure of which
an incoming traveler might possibly have notice that there may be a request to
submit to an X-ray examination in a case of this kind? Has it been publicized
sufficiently so that one could say that it's something that a traveler might --
MR. FREY: Well, I don’t --
I doubt that we publicize it very much in Colombia. I mean we --
QUESTION: Or even in the
federal regulation. Bow long has the procedure been followed? Maybe I should
ask it that way.
MR. FREY: Well, as far as
I am aware, the instructions for dealing with the x-ray situation are contained
in manuals that are not published, that are issued to Customs agents in the
various regions. And, in fact, these manuals vary in what they instruct the
agents to do depending on the region and the law. The manuals are different in
the Ninth Circuit from what they are in the Eleventh Circuit.
QUESTION: Bas
there ever been any objection to the intrusiveness of the x-ray procedure itself
other than the possible risk to a pregnant person? I mean is it just an
external x-ray? You don’t have to put in an dye or anything of that kind to
make it –
MR. FREY: That is my
belief, that it is just a normal abdominal x-ray of the kind that you would
have. I don’t think that the record shows that kind of an x—ray it is.
QUESTION: Because
there are x-ray. and X-rays.
MR. FREY: I understand,
but I don’t --
QUESTION: As far as the
record shows, it’s just a matter of someone standing up against a camera and
having a picture taken.
MR. FRET: As far as I
know.
I think it is -- while I
believe there is some theoretical or possible health hazard that is absent in
the case of drawing blood; that is, over a large population, all of whom get
x—rays, a very small proportion of that population say develop cancer at acme
point in their life as a result of the x-ray.
Still, I think some of the
literature that we cited showed it’s a very routine procedure, and one of the
articles said that in 1970 129 million people in the United States had x-rays
of one kind of another. So it is our belief that this is the kind of thing that
Schmerber described as a routine procedure which if done, as we always do it,
by competent medical personnel in a hospital setting, not done by the customs
agents --
QUESTION: But there’s
considerable opposition in the medical profession of taking too many X-rays.
MR. FREY: Well, there is
some concern about –
QUESTION: I mean I
wouldn’t stretch the point too far.
MR. FRET: Well, I don’t
know that I’m stretching the point too far. I’m not suggesting that --
QUESTION: Well, you say
that it’s a commonplace thing.
MR. FEET: It is.
QUESTION: Well, I’ve read
articles that say please don’ t make it a coonplace thing.
MR. FREY: Well, I think
there --
QUESTION: How many X-rays
would have been called for here?
MR. FREY: I don’t know the
answer to that.
She never was in fact
X—rayed here.
QUESTION: But one x-ray,
it would disclose whatever it was there –
MR. FREY: I can’t vouch
for that.
QUESTION: -- I would
assume.
MR. FREY: I just don’t
know.
QUESTION: Well, Mr. Frey,
you aren’t asking us to decide the standard by which th. government can force
someone to have an X-ray, are you? Aren’t you asking us to decide the reasonableness
of a detention?
MR. FREY: Of a detention
in lieu of an X-ray.
QUESTION: In lieu of an
X-ray?
MR. FREY: That is what the
issue is in this case. But the way I-rays come into the case is that in order
to consider -- that is, we’ve made the argument that in determining the
reasonableness of a detention of the kind that occurred here, you look at the
alternatives that are made available. And, of course, my brother here will
suggest to you that an X-ray is a dose of poison and the fact that people can
have I-rays can’t help the government’s case here. And I suggest that the fact
that X-rays are relatively routine and that I think we know from common
experience that most people prefer them, or many people would prefer them does
bear on the reasonableness of the detention.
QUESTION: Mr.. Frey --
QUESTION: Here she didn’t
give any reason at all. She said she didn’t want to take it.
MR. FREY: Well, the reason
that she gave was that she didn’t want to be handcuffed going to the hospital.
QUESTION: Well, I mean
that’s –
MR. FREY: And she also --
she maid she was pregnant, which was false, and of course, she would not have
been I—rayed before a pregnancy test was done. In this particular test they did
the pregnancy test, but before the results came back they did the rectal examination and produced the first evidence.
QUESTION: Mr. Frey, is there anything in these
articles that discloses the frequency rate of contraband when X-rays are taken?
Is it 1 out of 100?
MR. FREY: Well, the articles that we referred to in
our brief in opposition to Vega-Barvo are medical articles addressing the
general subject of X-rays rather than to alimentary canal smuggling x-rays. I’m
aware of r published data with regard to the frequency with which people who are
X-rayed turn out to have contraband. We have gotten some information from
Customs, but it’s not in the record and it’s not public.
I think rather than addressing respondent’s argument
that there was no reasonable suspicion here, which I hope I addressed in the
course of the statement of facts, I will save the balance of my time for
rebuttal.
QUESTION: Mr. Frey, do you know where Ms. de
Hernandez is presently?
MR. FREY: I understand she’s back in Colombia.
QUESTION: Thank you.
CHIEF JUSTICE BURGER: Mr. Horstman.
ORAL ARGUMENT OF PETER
MARVIN HORSTMAN, REQ.,
ON BEHALF OF THE
RESPONDENT
MR. HORSTMAN: Mr. Chief Justice, and may it please
the Court:
Petitioner states on page 18 of the petition that the
decision below has resulted in application of different rules governing Customs
procedures in the Eleventh and Ninth Circuits, and the decision of the Ninth
Circuit virtually invites alimentary canal smugglers to shift their operations
to the Ninth Circuit where -- now I'm paraphrasing -- the higher clear
indication standard basically ties the hands of Customs officers and would
invariably cause the release of alimentary canal smugglers into the country.
And by that language the implication would be that this Court needs to overrule
that decision in order to quash basically a runaway circuit, which would be the
Ninth Circuit in this case, in terms of the clear indication standard.
The language and the rhetoric used by petitioner is
compelling and even alarming, but we submit that it is simply not true. And if
you carefully read the facts and the holdings of the reported cases in both the
Ninth, the Fifth and the Eleventh Circuits, a careful and close reading of the
facts and holdings of those cases show that the rules applied by the three
circuits are exactly the same. only the labels differ.
In other words, in the Fifth and EleventhCircuits
those circuits recognize the hierarchy of intrusiveness in border searches, and
a flexible, reasonable suspicion standard. So that, for instance, a body cavity
search would require a higher level of flexible, reasonable suspicion than
would a frisk or a strip search, and -
QUESTION: Then
instead of it being an intermediate standard, in your view, Mr. Horstman, it’s just
really a multitude of standards.
MR. HORSTMAN: That’s correct. If you’re in the Ninth
Circuit and if you look at, for instance, the facts of Mosquera-Ramirez, which
petitioner cites as the case that shows why the Ninth Circuit needs to be
reversed, if you look at the facts of Mosquera-Ramirez, there is in fact what
would have been held to be clear indication in the Ninth Circuit. If you look
at the many Ninth Circuit cases which I cite in footnote 30 that have upheld
lengthy detentions and X-rays based on clear indication evidence, you’ll see
the facts in those cases correspond very closely to the Fifth and Eleventh
Circuit cases using the flexible, reasonable suspicion standard.
QUESTION: But reasonable suspicion is at least
something that our Terry cases have talked about fairly regularly. If the Ninth
Circuit really means
reasonable suspicion, why does it use the term clear
indication?"
MR. HORSTMAN: I cannot answer that. I do not know.
And -- but respondent submits, that this Court need not approve the Ninth
Circuit standard or disapprove the Ninth Circuit standard. All that you need to
do in this case to affirm the Ninth Circuit opinion is to use your common sense
based on human experience to know that the detention in this case was
unreasonably intrusive given the totality of the circumstances.
QUESTION: You mean the length of it, the duration?
MR. HORSTMAN: That’s only one prong of the
intrusiveness here. The length alone, we submit, is unreasonably intrusive. And
keep in mind now we’re not talking about 16 hours, if you accept the Solicitor
General’s theory of this case. The Solicitor General’s theory of this case is
that the Ninth Circuit rule relying on a court order is frivolous at least.
Therefore, given the Solicitor General’s theory of this case, we have a 27-hour
detention before anything incriminating that would have supported an arrest is
found.
QUESTION: Could she not have terminated that any
time she wanted to?
MR. HORSTMAN: That certainly is the Solicitor
General’s theory that--
QUESTION: Well, I’m just asking you to respond to
that question.
MR. HORSTMAN: But--
QUESTION: Could she not have terminated the
detention at any time?
MR. HORSTMAN: Well, she could have terminated it by confessing,
or she could have terminated it by waiving her Fourth Amendment rights to avoid
an X-ray search. But the case is -- this Court’s cases all the way back to
Simmons had said that the state cannot unfairly burden the exercise of a
constitutional right.
QUESTION: Well, how much of Simmons is left after
Magatha?
MR. HORSTMAN: The basic import of Simmons is still
valid, Your Honor, and to give you an example of how and why it is, if a
policeman comes to Mr. Frey’s door without a search warrant and asks Mr. Frey,
may I come in and search, and Mr. Frey may freely say no, that police officer
may not then use the fact that he declined the officer to come in and search
his home as further suspicion allowing him to get a warrant, nor may be use
that as exigent circumstances allowing him to knock down the door.
QUESTION: You don’t need Simmons -- you don’t need
Simmons for that proposition.
MR. HORSTMAN: Possibly not. But the point is here
the government cannot argue that by not consenting to allow an invasion of her
Fourth Amendment rights, she therefore consented to the even more intrusive
procedure.
QUESTION: Well, but there is a certain resemblance
to civil contempt here where you have the feeling that the respondent carried
the keys in her pocket, so to speak, if she had simply ceased her heroic
efforts.
MR. HORSTMAN: Well, Your Honor, the evidence on that
last point is extremely ambiguous, and let me give you an example of that.
There is language in the Ninth Circuit’s opinion that says apparently heroic
efforts, but just before, that language it says their suspicions were that she
was using heroic efforts.
What if aà innocent traveler just because they have
bad a long flight was unable to excrete end found themselves in a positi’.m
where a border agent said well. we wish you to excrete command so that we will
be sure that you’re not carrying anything internally. An innocent person might
be unable to do that on command, and it wouldn’t be heroic efforts in that
case.
QUESTION: Well, perhaps it wouldn’t be heroic
efforts on command, but for 16 hours.
(Laughter.)
MR. HORSTMAN: It’s certainly possible that a person
who is nervous or afraid anyway because they are being confined would be unable
to excrete for a Lengthy period of time, but that wouldn’t necessarily mean
evidence of guilt.
In any event, we think and we submit to you that the
Solicitor General’s statements about the Ninth Circuit’s additional
requirement, and to quote directly, the devastating effect that the Ninth
Circuit clear indication standard is a red herring here, there are many
legitimate issues that the government is raining , that axe present in this
case. One of them is not the problem of the Ninth Circuit having erected an
unreasonably high standard that is above the standards in the other circuits.
The facts and holdings of those cases are not -- do not bear that out.
Mosquera-Ramirez would have been decided exactly the
same way in the Ninth Circuit, along with Ek and Couch and Aman and Irwin and
Shreve, and the other cases cited in our footnote number 30. And I should also
point out that in the Joint Appendix there is an indication that on. of the
Customs agents in this case--I believe at page 47-- had 30, bad seized 30
alimentary canal smugglers. Certainly the law is in fact working in the Ninth
Circuit. just because they use a form of words that’s different or a different
label is not the determinative difference in this case.
Mr. Chief Justice asked whether the length alone was
the intrusiveness. It wasn’t just the length alone, It was the length and the
circumstances of the detention. She was placed in a room with three law
enforcement officers, which in Royer this Court held to be the essence of
imprisonment.
The government’s statement that she was simply being
held until the next available flight is refuted by the facts of what the
government did. It they really bad meant to deport her, which incidentally,
customs has no statutory or regulatory authority to do, they would have simply
turned her back over to Immigration where she would have had the rights that
Justice O’Connor enumerated recently in Placensia and Immigration would have
had to follow her procedural due process rights.
I submit to you, Justices, ‘that the government knew
she was not deportable, and therefore, this language about holding her for the
next available flight is nothing wore than a charade and a subterfuge.
How do I know that? I know that because of what they
did. They didn’t just put her in a room. They observed her. Their intention at
that time was to obtain additional incriminating evidence that would support a
court order -- the very thing that this Court has held in Dunaway, Davis and
Bayes is improper, because the essence of a police state is to arrest someone
without probable cause, bold them in custody incommunicado, and attempt to
elicit incriminating information. And that is precisely what happened in this
case.
QUESTION: Mr. Horstman, do we know here whether Ms.
de Hernandez had effected an entry into the United States?
MR. HORSTMAN: Yes, Your Honor, we do.
QUESTION: And how do we know that?
MR. HORSTMAN: I’m glad you asked that question. The
government, it they have their way, the Solicitor General would love to blur
the distinction between the functions of Customs agents and the function of
Immigration agents. They have a totally unsupported statement in their reply
brief that the functions are interchangeable. It is not true. It it were true,
there would be acme support for that statement, you can bet on it, from the
Solicitor General.
The point is that it’s -- we will concede that after
her passport and visa were stamped, admitted, she may not have been admitted
into this country for all purposes because she hadn't t passed through Customs,
but she had been admitted for Immigration purposes. And if you search, as I’m
sure the Solicitor General has, you may search those Customs laws and
regulations, but you will not find a word or a phrase in there that allows
Customs agents to treat’ Lens differently than citizens ox provides for s a
treatment for aliens.
QUESTION: Well, why does it allow in her mouth to
challenge the distribution of functions between the Customs and the Immigration
Service? This is the government here.
MR. HORSTMAN: Right. In Other words, bow would she
know that her expectation of privacy increased after she’d got through with
Immigration. The answer to that is it is not totally a subjective expectation
Of privacy. Therefore, what an illiterate alien knew is not the determinative
thing. it’s a reasonable expectation of privacy, an expectation that society is
preparing to recognize.
QUESTION: Are you saying that if Immigration makes a
mistake in permitting her to enter and some other branch of the government
discovers the mistake, they can't t rectify it?
MR. HORSTMAN: Well, I’m saying something much more
limited than that. I’m saying that in terms of the government’s argument that
because it’s well known that Immigration regulations sometimes allow detentions
and searches and seizures before a person is admitted, her reasonable
expectation of privacy was lower.
Whatever the merits of that in another case, it ha.
no applicability to the facts of this case, because the reasonable expectation
of privacy of an alien and a citizen before Customs by virtue of statute and
regulatory authority is equal.
As we admit in your brief, Your Honor, if evidence
of drug activity had been discovered during routine immigration procedures and inspection,
this would be a much more difficult case for us. But that is not the facts of
this case.
QUESTION: I suppose you agree that alimentary canal
smuggling is a major problem for the country now?
MR. HORSTMAN: Your Honor, we could not agree more, Justice
Blackmun, with you and Justice Powell in the words that you wrote in
Mendenhall, that drug smuggling is perhaps one of the foremost problems of this
country, and that the detection of illegally concealed drugs, the problems in
detecting those are perhaps unmatched in any other area of law enforcement.
We agree and concede that. Our point is this -
QUESTION: What do you suggest, then, that the
government do to meet this rather offensive problem?
MR. HORSTMAN: That’s a very difficult question, Your
Honor.
QUESTION: I take it on your theory here all
These like your client would be permitted ‘to come
in and
MR. HORSTMAN: We submit that if look at the facts in
the reported cases, that is not happening. What happened in de Hernandez is not
the cause of the drug problem in this country. You can look at the many, many
cases decided both in the Ninth and Eleventh Circuits where there is
articulable suspicion.
Our point is there was no articulable suspicion in
this case. Our point--
QUESTION: Well, it was certainly articulable. What
the court, the Ninth Circuit wanted was something more than that. It wanted
evidence that she was carrying a laxative or other things that are above and
beyond an articulable, reasonable suspicion that would meet a Terry stop
standard.
MR. HORSTMAN: Well, Your
Honor, the Solicitor General said, the Deputy Solicitor General, that the felt
that it was uncontested a few minutes ago that there was in fact reasonable
suspicion here.
It’s important to point out that reasonable suspicion
was never addressed below, and there was --
QUESTION: Well, do
you agree that there was?
MR.
HORSTMAN: We -- our position is that there was no reasonable suspicion to
conduct the strip search, the first strip search; that all that they had at that
time were vague profile characteristics. They were -- they could conduct a
routine Customs search and seizure, but once they began a more intrusive search
-- that is, that first strip search -- they had to have something more than she
did not speak English --
QUESTION:
More than the profile.
MR.
HORSTMAN: More than the profile.
QUESTION: The
knowledge of what she was carrying in her luggage and her statements.
MR.
HORSTMAN: Yeah. As a matter of fact, Your Honor, if you Look closely at the
facts, Rosa Elvira Montoya de Hernandez --
QUESTION:
Do you think that our cases support your statement that there vasn’ t
reasonable suspicion?
MR.
HORSTMAN: Yeah, Your Honor. We believe that this case is the different case. In
other words, this case is not the routine case. If you look at the facts of
this case, she had -- perhaps she was very cunning and clever, but there just
wasn’t reasonable suspicion. Everything she said rang true. She said she was
here to buy things for her husband’s --
QUESTION:
Do you mean that it was true that she was going to J.C. Penney to spend $5,000
to buy stuff to take to bet husband?
MR.
HORSTMAN: Well, Your Honor, in fact she was lying, and in fact she was guilty,
and --
QUESTION:
Well, does lying, in your mind, get very close to suspicion?
MR. HORSTMAN: Well, but
the question is what did the Customs officers know at that time.
QUESTION:
That she’s lying.
(Laughter.)
MR.
HORSTMAN: They may have had a suspicion that she was lying, but it was nothing
more than --
QUESTION:
I thought you said they knew she was lying?
MR.
HORSTMAN: No, I don’t believe I said that, Your Honor.
QUESTION:
Well, don’t you know now say it?
MR.
HORSTMAN: Well, we now know that she was in fact lying, but it seems to me that
it’s not productive to look at the decisions they made, and the choices she was
given, and the reasonableness of their conduct in light of what we have
subsequently discovered concerning her guilt.
Obviously,
it would have been a travesty on justice to release her, but the Fourth
Amendment can only protect all our rights. If we look back at what they knew
and the reasonable inferences they could make from what they knew then, and it
just doesn’t support the way in which they intruded upon her privacy.
QUESTION:
Are you aware of any statistics that demonstrate how often someone detained at
the border for -- on suspicion of alimentary canal smuggling is in fact found
to have been smuggling?
MR.
HORSTMAN: Yes, Your Boner. If you have my brief, if you’d refer to footnote
number 88 for a moment.
The
statistics, I certainly would concede, have not been done with the
conscientiousness that perhaps they could and should have, but if you look at
footnote 88, the statistics available at least in the reported cases indicate
that innocent persons are swept with alarming regularity into these very
intrusive body cavity and strip searches at the bother.
For
instance, in the study that usa done in Guadalupe Garso, only 29 percent of the
people at the border subjected to strip searches were found to contain
narcotics.
QUESTION:
Well, that was back in 1968.
MR.
HORSTMAN: Yes.
QUESTION;
That’s pretty old, isn’t it?
MR.
HORSTMAN: It is.
QUESTIONS
I wonder if with all the experience the government has had in the intervening
years with increasing drug traffic if there isn’t a little more skill in
detection today.
MR.
HORSTMAN: I don’t know, Your Honor, and I don’t know of any more recent
statistics. But we would submit that the burden is on the government to show
statistics that show that innocent persons are not being brought in and
subjected to these very intrusive searches. As this Court held in Royer at page
500, the burden is on the government.
QUESTION:
Well, you say 29 percent recovery rate is unreasonable. Now, surely you don’t
want a hundred percent recovery rate before you say it’s permissible, do you?
MR.
HORSTMAN: No. But, Your Honor --
QUESTION:
What recovery rate would you settle for as being reasonable?
MR.
HORSTMAN: A question I cannot answer.
All I can say is that in the balance of
reasonableness, the extent to which any government procedure impinges on the
rights of innocent persons belongs in that balance, and --
QUESTION:
Well, but that really doesn’t help decide the particular facts of this case, I
don’t think.
MR.
HORSTMAN: I don’t think this Court has to set a bright line standard in terms
of the percentage that the government has to come up to in order to conduct
these searches, but certainly the other 70 percent of the innocent people who
are perhaps in Ms. de Hernandez's position have their rights. And keep in mind,
if Ms. de Hernandez --
QUESTION: Mr.
Horstman –
MR. HORSTMAN: —- I know,
Justice Marshall, she was lying and she was guilty, but had she been innocent,
this case never would have come before this Court. She would have gone --
QUESTION:
But, Mr. Horstman, may I interrupt with a question there? Even if you had a
probable cause standard -- I don’t know just what percentage of probability
that means, but assume it’s 50 percent --doesn’t that by hypothesis assume that
50 percent of the people who are searched may well be innocent? You’ll always
have a significant probability of innocent people
being searched under
whatever your standard is.
MR.
HORSTMAN: That’s correct, Tour Honor, but in terms of the facts of this case,
to give the Court’s imprimatur to what was done in this case based upon their
level of suspicion in this case would simply allow basically government agents
at the border to conduct these very intrusive searches based on no more than an
inchoate bunch and probably -
QUESTION: Well,
this isn’t an inchoate hunch here. I –
MR. HORSTMAN: I beg
your pardon?
QUESTION:
You’re going to have trouble persuading me there wasn’t a reasonable suspicion
here.
MR.
HORSTMAN: Well, Your Honor, I would like to address that. There was nothing
that you will find in the other reported cases here -- for instance, there was
no inconsistency in her passport or visa, no evidence of passport or visa
tampering. She told that -- she had a perfectly logical and reasonable
explanation for what she was doing. She offered them a phone number to call
where they could corroborate her stody, which they declined to do. She had a
book of receipts.
In
Mosquera-Ramirez for instance, his passport showed two prior trips to Miami,
and when the agents confronted him with this, he became very evasive and very
nervous." When they noticed that Ms. De Hernandez had previous short trips
to the United States, she showed them Exhibit 102, which was a book of receipts
showing that on prior occasions which matched the entries in her passports she
had actual receipts from the kinds of places she told the government that she
was going to visit. She bad corroborating circumstances for what she was doing.
She had money that was sufficient for her purposes. For instance, in
Mosquera-Ramirez, the Eleventh Circuit case, the man had $1,295 which the
agents figured out on the spot was insufficient to make the purchases he said
he wanted to make. Be had an inherently incredible story. Re worked in a pool
hall, and yet be said be was here to buy stereo components.
QUESTION: Well,
suppose we limit it to the facts in this case. That wouldn’t be enough? Whereas
she couldn’t speak English, she had no family or friends in the United States –
MR. HORSTMAN: Yes.
QUESTION:
-- She was coming to buy merchandise and clothes from various stores.
MR.
HORSTMAN: That would --
QUESTION:
She had no plans to stay. She was just going to ride around in taxicabs. She
had one pair of shoes and no toilet articles of any kind, and she carried a
billfold with over $5,000 in it. She was going to ride a whole lot of taxis.
(Laughter.)
QUESTION:
Do purchasers from other countries
coming here to buy merchandise to resell in their own countries
ordinarily purchase it from retail stores, or do they go to wholesalers?
MR.
HORSTMAN: I don’t know the answer to that, Your Honor, but --
QUESTION:
Well, logically as a matter of economics, what would be the answer to it?
MR.
HORSTMAN: Uh, logic
QUESTION:
Would it not alert you if you were a Customs agent that there was something odd
about someone, a buyer for a store in anOther country buying at retail in this
country?
MR. HORSTMAN: No, Your
Honor. As a matter of fact, Ms. de Hernandez was not here as a representative
of a large concern. She apparently-— she and her husband had basically what we
would call a mom and pop store, and perhaps she didn’t have any –
QUESTION; Well, it still
must make a profit in order to justify itself.
MR. HORSTMAN: Certainly, but -
QUESTION:
Mom and pop stores buy from wholesalers, not from retailers.
MR.
HORSTMAN: Maybe not. Maybe she didn’t have enough -- maybe the wholesalers
would not sell in a small enough quantity. Maybe she didn’t have a big enough
capital to buy from a wholesaler. Again --
QUESTION:
Five thousand is quite a piece of merchandise for a wholesaler. Wouldn’t that be enough, reasonably, to
alert any intelligent person that there was something odd about this trip?
MR.
HORSTMAN: No, Your Honor, not in terms of the intrusive procedures that they
intended to impose. The fact that she arrived with cash to make purchases from
LC. Penney and K-Mart certainly isn’t the kind of suspicious circumstances that
would authorize the kinds of intrusive procedures employed here. Again, it’s a
balancing. The more intrusive procedure, the stronger level of suspicion that’s
needed. And if you compare the facts of this case with Mosquera-Ramirez or any
of the other Ninth, Eleventh or Fifth Circuit cases, the evidence just wasn’t
here.
The
final point I would like to make in terms of the suspicion that they had, the
government makes at this point before this Court a great -- gives great
significance to the fact that she wore two pairs of undergarments; but it’s
important to point out that that fact was not a fact that was deemed suspicious
by the agents in th. field who this Court has again and again said their
trained eyes can often detect things and suspicious circumstances that wouldn’t
appear suspicious to the untrained person.
As
a matter of fact, the Solicitor General even in their petition for cert bad this
to say about that first strip search: The search failed to produce any evidence
of contraband. It’s only in the Solicitor General’s brief on the merits that
they begin to say that the fact that she wore two pairs of undergarments with a
paper towel in the crotch was suspicious. And I submit to you the reason
they’re doing that is because the Solicitor General is desperate in this case
for reasonable suspicion.
It
was given no significance by the Customs agents, no significance by the matron
who searched her, who wrote it down as being consistent with her having some
type of vaginal discharge. Only before this Court does the Solicitor General
now say that was extremely suspicious.
Unless
the Court has further questions I have nothing.
QUESTION:
What actually happened to Ms de Hernandez in terms of any criminal prosecution,
and where is she presently?
MR.
HORSTMAN: Okay. What happened was she was given a two-year sentence by Judge
Gray. She served out her sentence. Shortly after the Ninth Circuit -- at about
the same time the Ninth Circuit reversed the conviction, she was released after
doing approximately 17 months of the sentence.. She was then immediately
deported and is apparently now back in Colombia, although we do not have an
address or a telephone number for hen. We have not heard anything from her
since she was deported. And, in fact, as far as we know, she does not even know
that this Court granted cent or that the case is here today.
CHIEF
JUSTICE BURGER: Do you have anything further, Mr. Frey?
ORAL ARGUMENT OF
ANDREW LEWIS FREY, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL
MR.
FREY: Just a couple of things.
First,
I want to plead not guilty to desperation, and I hope the Count doesn’t have
even a reasonable suspicion otherwise.
I
will agree with Mr. Horstman that the facts in the Eleventh Circuit cases which
we’ve addressed in our cent oppositions to some of those cases where petitions
were filed were stronger than this case. Indeed, in our view in most of those
cases they amounted to probable cause.
But
I think as the questioning of the Court made clear, all Mr. Horstman has really
been able to establish is that it’s possible that his client was telling the
truth and was not an alimentary canal smuggler but a legitimate business traveler.
Obviously, that possibility is not enough to defeat a reasonable suspicion.
And
with regard to this Customs-Immigration question, there is a general practice
of cross-designating Customs and Immigration agents. There’s no evidence in the
record in this case as to whether or not they were cross-designated. Where they
are cross-designated, which is usually true at ports of entry -- I'm talking
about the inspectors within the secure area -- they -- Immigration inspectors
can perform Customs functions and vice versa.
Now,
even if the Customs officer were not cross-designated, however, it’s perfectly
clear that if he gained information that the person had a forged visa or was
otherwise ineligible for entry under the Immigration laws, you should have no
doubt in your mind that he would take the person back to Immigration. Now, in
this case what happened and what often happens at the border -- for instance,
people swimming across the Rio Grande when they are caught, are normally it
they are willing to just turn around and swim back to the other side or be
driven back to the other side, there is just an informal allowance of them to
leave. Only if they say they want to say would they be subject to a formal
exclusion proceeding.
Even
it, as respondent contends, she had entered the country for immigration
purposes after her passport was stamped, however, that would mean nothing more
than that under these circumstances there would be a deportation proceeding
rather than an exclusion proceeding, and of course, she would be detained for
purposes of the deportation proceeding anyway. So no matter how you slice it,
she does not have a right to come in.
The
Placensia case deals with resident aliens who live in the United States, and I
don’t have the case with me, but I think the language --
QUESTION:
Well, Mr. Frey, if it were a citizen coming back into this country or a
permanent resident alien coming back into the country, do I understand you to
say that the government policy would
be to detain someone
under the circumstances of this case and not allow them to leave and go back to
wherever they were coming from; for example, if it were an entry at Juarez to
go back into Mexico?
MR.
FREY: That would be -- definitely would be the policy, and that indeed would be
the policy with respect to non-resident aliens, visitors. We would not simply
let them go back. I mean obviously --
QUESTION:
But I’m asking for a citizen. You wouldn’t let the citizen leave and go back to
Mexico.
MR.
FREY: We would not, not as long as we had a reasonable suspicion. We would hold
them until we could -- and if we had a citizen who we thought was -who
Immigration thought might be wanted by foreign police who presented himself at
the border, we might detain him equally for purposes of checking that out if it
could be done within a reasonable period of time.
QUESTION: Mr. Frey, can I
ask you this one question? I know that the people at the border decided not to
seek a court approval of an x-ray. In your view or in the government’s view
after having studied the case, do you think there was sufficient evidence so
that an order compelling an x-ray could have been obtained
properly?
MR.
FREY: Well, are you asking whether I think the clear indication standard was
satisfied or whether --
QUESTION: Whatever
standard you think is the one we should apply. Do you think -- see, your case,
as I understand it, rests in part on the notion that it was not unreasonable
because you gave her the choice to consent to an X-ray. And I’m wondering if
you think you could have compelled her to submit to an x-ray based on the
information –
MR. PREY: I don’t
want to suggest that we had to give her that choice, but we think that’s a fact
--
QUESTION:
But you rely rather heavily on it, I think.
MR.
FREY: We believe we could have compelled her in the sense of ordering her -
QUESTION:
Assuming no health hazard is demonstrated.
MR.
FREY: And a question would arise only it we had to use physical force; that is,
it there were physical resistance.
QUESTION:
Well, but you used physical force here. I don’t see why that’s different.
MR.
FREY: No, we did not use -- no, we did not use -- I mean when we got the court
order --
QUESTION:
Well, she wasn’t free to go.
MR.
FREY: Oh, no, but you have to distinguish, I think, between a voluntary consent
in the sense of a tree choice of the individual as to what to do and a
nonforcealge but not voluntary. That is, we could say to somebody you’re coming
with us for an X-ray, take them to the hospital, give them to the doctor and
say if it’s okay, take an x—ray. If they submit to that, that would r.ot be a
voluntary consent to the X—ray, but it would not be a physically forced X-ray
in the sense that in Roshen against California be was --the emetics were forced
down his throat.
QUESTION:
Are you -- I just want to be sure I don’t -- I understand you: position.
MR.
FREY: But --
QUESTION:
Are you saying that you could or could not, assuming you followed all the procedures
that might be appropriate, would there have been a constitutional objection to
your obtaining an X-ray against her will?
MR.
PREY: No. Our position is that we could do that On reasonable suspicion.
QUESTION: Well, on
the facts of this case, whatever—
MR. FREY:
Definitely. That is definitely our position. --
Thank you.
CHIEF JUSTICE BURGER: Thank you, gentlemen.
The case is submitted.
(Whereupon, at 11:02 a.m., the case in the
above-entitled matter was submitted.)